DHANANJAYA YESHWANT CHANDRACHUD, J. - (1.) THE reference to the Full Bench The reference to the Full Bench has been occasioned upon two orders passed by learned Single Judges of this Court. By the first of those orders, the following question was referred for consideration: "Whether an order made under Section 156(3) of the Code of Criminal Procedure, 1973 (Code) is an interlocutory order and the remedy of a revision against such an order is barred under sub -section (2) of Section 397." Subsequently, a learned Single Judge of this Court, while noticing the above reference, referred two additional questions for consideration by a larger Bench: "(1) Whether an order made under Section 156(3) of the Code rejecting an application for a direction to the police to register and investigate, is revisable under Section 397; and (2) If the answer to Question (1) is in the affirmative, then, whether in a revision filed against an order rejecting an application under Section 156(3), the prospective accused is also a necessary party and is required to be heard before a final order is passed." The Full Bench decision in Father Thomas Before we enter upon the issues which are raised in this reference, it would, at the outset, be necessary to traverse, for clarity of exposition, the ground which has been covered by a decision of a Full Bench of this Court in Father Thomas v. State of U.P., : 2011(1) ADJ 333 (FB). In that case, a Single Judge of this Court was of the view that as the accused has no locus standi before an order of summoning is passed and since an order directing investigation is interlocutory in nature, such an order is not subject to a revision in view of the statutory bar contained in Section 397(2) of the Code. Section 397(2) provides that the power of revision which is conferred by sub -section (1) upon the High Court or a Sessions Judge to call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself of the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. However, it had earlier been held in a decision of this Court in Ajai Malviya v. State of U.P., : 2000 ACJ 2730, that since an order under Section 156(3) is a judicial order, an FIR registered on its basis could not be challenged by a writ petition. Accepting that an order under Section 156(3) is a judicial order, the learned Single Judge who made the reference in Father Thomas was of the view that since the order is nonetheless interlocutory in nature, it could not be challenged by a prospective accused who has no locus standi at the stage of investigation and, hence, a criminal revision is not maintainable for challenging such an order. The reference before the Full Bench in Father Thomas was of the following three questions: "A. Whether the order of the Magistrate made in exercise of powers under Section 156(3) CrPC directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued; B. Whether an order made under Section 156(3) CrPC is an interlocutory order and remedy of revision against such order is barred under sub -section (2) of Section 397 of the Code of Criminal Procedure, 1973; and C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and others, 2000 (41) ACC 435, that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an FIR registered on the basis of the order will be maintainable, is correct." The judgment of the Full Bench on each of these three questions which were referred, held thus: "(A) At the pre -cognizance stage when only a direction has been issued by the Magistrate under Section 156(3) to investigate, a prospective accused has no locus standi to challenge a direction for investigation of a cognizable case before cognizance or the issuance of process; (B) An order under Section 156(3) passed by a Magistrate directing a police officer to investigate a cognizable case is not an order which impinges on the valuable rights of the party. An order by the Magistrate for investigation is an incidental step in aid of investigation and trial and is interlocutory in nature, similar to orders granting bail, calling for records, issuing search warrants, summoning witnesses and other like matters which do not infringe upon a valuable right of a prospective accused and is, hence, not amenable to a challenge in a criminal revision in view of the bar contained in Section 397(2). The bar under Section 397(2) to the entertaining of a criminal revision cannot be circumvented by moving an application under Section 482; and (C) An order made under Section 156(3) is an interlocutory order and the remedy of a revision against such an order is barred under sub -section (2) of Section 397. The decision in Ajai Malivya's case was held not to lay down the correct position in law."
(2.) THE present case In the proceedings in which the present reference to the Full Bench has been occasioned, an application was moved before the Chief Judicial Magistrate, Ambedkar Nagar against the petitioners by opposite party No. 2 under Section 156(3). The Magistrate, after considering the contents of the complaint, came to the conclusion that there was no ground for directing the police to register and investigate the case, upon which the application under Section 156(3) was rejected. Aggrieved, opposite party No. 2 preferred a revision before the Sessions Judge which was allowed and while setting aside the order of the Chief Judicial Magistrate, the latter was directed to decide the application under Section 156(3) afresh. Aggrieved by that order of the Sessions Judge, this Court was moved by the petitioners. The submission of the petitioners was that (i) the Sessions Judge decided the revision without furnishing to them an opportunity of hearing though, according to them, they were necessary parties before the revisional Court since their "valuable rights" were going to be affected by the order that was sought before and was eventually passed by the revisional Court; (ii) in view of the decision of the Full Bench in Father Thomas, the remedy of a criminal revision was barred under Section 397(2) since an order passed by a Magistrate on an application under Section 156(3) is an interlocutory order.
(3.) THE learned Single Judge in a referring order dated 15 May 2014 observed that in Father Thomas, the Full Bench was examining a case in which a prospective accused had challenged an order passed under Section 156(3) by which the Magistrate had directed the registration of a First Information Report and an investigation. The learned Single Judge noted that in the decision of the Supreme Court in Aleque Padamsee v. Union of India, : (2007) 6 SCC 171, it has been held that even where the application of an informant for a direction to register and investigate under Section 156(3) is refused by the Magistrate, the remedy would not lie in filing a writ petition but in a complaint under Section 190(1)(b) read with Section 200 of the Code. In the view of the learned Single, under the provisions of the Code, a duty is cast upon the police to register and investigate a case whenever information of the commission of a cognizable offence is brought to the notice of the police. It is only when the police refuses to register a case in a cognizable offence that the informant may approach the Magistrate under Section 156(3) for a direction to the police to register and investigate. If the Magistrate finds from a perusal of the application that the commission of a cognizable offence is made out, he may direct the police to register and investigate. On the other hand, when the complaint does not disclose the commission of any cognizable offence, the Magistrate can reject the application. In some cases, it was held, the Magistrate may treat an application under Section 156(3) as a complaint and while taking cognizance under Section 190(1)(b), follow the procedure of a complaint case. The problem, it was noted, arises where an informant cannot himself collect evidence against the accused and produce it before the Magistrate. In such cases, investigation by the police is necessary. Where the Magistrate rejects an application under Section 156(3) without application of mind and the revision is held to be barred under Section 397, it was held that the informant would be left without a remedy because even if he files a complaint before the Magistrate, he may not be able to collect and produce all the evidence needed to prove the guilt of the accused. In this background, the learned Single Judge observed that while answering the second question which was referred, the Full Bench in Father Thomas held that an order under Section 156(3) is interlocutory. However, it is not clear as to whether an order passed by the Magistrate, rejecting an application under Section 156(3) is also to be treated as an interlocutory order. This legal position requires, in the view of the Single Judge, consideration by a larger Bench and hence the present reference has been occasioned. The learned Single Judge has also felt himself unable to agree with a contrary view of another learned Single Judge in Criminal Revision No. 532 of 2013, holding that an order rejecting an application under Section 156(3) is interlocutory and that the remedy of a revision is barred.;